[2006] KEHC 2492 (KLR)
The court found that the learned Judge in the previous ruling failed to consider the statutory notice dated 1st April 2004, which was the subject of the application and was validly served. Instead, the Judge based the decision on the notice dated 22nd January 1999. This constituted an error apparent on the face of...
Source-derived case information.
- Citation
- [2006] KEHC 2492 (KLR)
- Parties
- Plaintiff: Tropical Nector Limited; Defendant: National Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Commercial Civil Case 489 of 2003
- Procedural Posture
- Civil Case / Ruling on Application for Review of Injunction Ruling
- Outcome
- Application for review allowed; previous injunction set aside; application for injunction dismissed; costs awarded to applicant.
- Judges
- PJ Ransley
- Legal Topics
- Review of Court Orders, Injunctions, Statutory Notices, Mortgage Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tropical Nector Limited
Plaintiff
National Bank of Kenya Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Injunction Ruling
Legal Issues
- 1 Whether there was an error apparent on the face of the record in the previous ruling regarding the statutory notice relied upon.
- 2 Whether the statutory notice dated 1st April 2004 was valid and properly considered by the court.
- 3 Whether the application for injunction should be dismissed based on the validity of the statutory notice.
Ratio Decidendi
The court found that the learned Judge in the previous ruling failed to consider the statutory notice dated 1st April 2004, which was the subject of the application and was validly served. Instead, the Judge based the decision on the notice dated 22nd January 1999. This constituted an error apparent on the face of the record. Since the only ground for granting the injunction was the invalidity of the earlier notice, and the later notice was valid, the court reviewed the previous ruling and dismissed the application for injunction. The applicant was awarded costs of the application.
Court Disposition
Application for review allowed; previous injunction set aside; application for injunction dismissed; costs awarded to applicant.
Orders
- The ruling granting injunction is reviewed and set aside.
- The application for injunction is dismissed.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 489 of 2003
TROPICAL NECTOR LIMITED ……………….............................………..…….PLAINTIFF
VERSUS
NATIONAL BANK OF KENYA LIMITED………...........................…..…….DEFENDANT
RULING
The Applicant seeks to review the Ruling of Mutungi J of the 6. 10. 2004.
The grounds is that there is an error on the face of the record namely that the learned Judge used as the basis of his ruling a Statutory Notice of the 22nd January 1999 whereas he should have relied on a Statutory Notice of the 1. 4.2004.
The response of the Respondent was that the Judge dealt with both Notices and found fault with them both and as such the remedy was by way of appeal it at all. Further the application was brought after 56 days.
The Ruling which is annexed to the affidavit in support of the application was for the issue of an injunction restraining the Respondent from selling the suit premises on the ground inter alia that the Statutory Notice served was invalid. The application was dated the 1st July, 2004 and was supported by the affidavit of Francis Mburu, the Managing director of the Plaintiff Company.
In the affidavit at paragraph 8, the deponent refers to a letter of the 1st April 2004 which he annexes as an exhibit to his application. This letter is the Statutory Notice giving the Plaintiff three months notice from the date of service thereof that the Defendant would sell the charged property. This is in my view is a perfectly valid notice.
From my reading of the said Ruling, it is apparent that the learned Judge did not deal with the validity of this Notice although it was the subject matter of the application but dealt with a Statutory Notice dated the 22nd January, 1999.
In my view, this gives rise to an error apparent on the face of the record. As the only ground on which the learned Judge granted the application for an injunction was due to the invalidity of the Notice of the 22nd January, 1999, I review the Ruling and dismiss the application for the injunction as the Statutory Notice of the 1st July, 2004 which the Plaintiff sought to impeach is in fact perfectly valid.
The Applicant will have the costs of this application.
Dated and delivered at Nairobi this 25th day of May, 2006.
P. J. RANSLEY
JUDGE